Founding Rivals

by Chris DeRose

  He also proposed a national judiciary, which had not existed under the Articles of Confederation. A federal judiciary could settle conflicts between states. In one instance, two states had spent years arguing over where the tribunal should meet to hear their dispute. And a permanent and independent judiciary would be necessary for enforcing federal laws. Besides, even while the Convention was meeting at Philadelphia, the British were still refusing to vacate their posts in American states, ostensibly because states like Virginia had closed their courts to British creditors in defiance of the Treaty of Paris. The federal judiciary would consist of one or more supreme tribunals, with inferior courts established by the national legislature. Judges would hold office during good behavior.

  The Virginia Plan also included provisions for admitting new states to the union, for amending the new articles of union without the involvement of the national legislature, and for ratifying the results of the Constitutional Convention by state conventions elected directly by the people, instead of by state legislatures.

  This last provision was crucial. The same state legislatures that had resisted the national impost and trade authority for Congress would surely reject the Constitution. Ratification by convention would provide a chance for passage—and the legitimacy of the people’s assent.

  Madison’s Virginia Plan was ambitious—and unlike anything that had been tried before anywhere in the world. It was an attempt to form a new government in light of the best and worst of mankind’s previous endeavors, from the recent experiments in the states to the ancient experiences of governments gone by. It was a delicate balance of competing interests poised against one another in order to protect the rights of all.

  For example, while Madison favored a House of Representatives that reflected the will of the people, he wanted a Senate that had some autonomy and could act as a check on the House. The division of power that he proposed was developed in light of the fact that power corrupts; those in power are always tempted to act in self-interest. While Madison feared trampling of minority rights, such as those of the Baptists and other religious dissenters in Virginia, he was equally worried about the development of an oligarchy in which a few would use their power to oppress the multitudes.

  Madison also feared attempts to redistribute wealth using the government. In the Convention he made the case that the Senate would serve as a bulwark against the redistribution of wealth: “In framing a system which we wish to last for ages, we should not lose sight of the changes which ages will produce. An increase of population will of necessity increase the proportion of those who will labor under all the hardships of life, and secretly sigh for a more equal distribution of its blessings. These may in time outnumber those who are placed above the feelings of indigence.”8

  Madison noted that “symptoms, of a leveling spirit, have sufficiently appeared in certain quarters to give notice of future danger.” He went on, “How is this danger to be guarded against on Republican principles? Among other means by the establishment of a body in the government sufficiently respectable for its wisdom and virtue, to aid on such emergencies, the preponderance of justice by throwing its weight into that scale.” Such was the intent of the Senate.

  More than three months of debate, amendments, proposals, coun-terproposals, and compromise followed the introduction of the Virginia Plan. The delegates were creating a new national government on a blank canvas. Nothing was truly settled until the last day of the Convention. But having successfully introduced such a detailed plan first, Madison had ensured that his ideas would govern the discussion that followed. Ultimately this plan, with some notable alterations, became the basis for the United States Constitution. In Philadelphia, Madison would earn the sobriquet, “Father of the Constitution.”

  On Sunday, June 10, Madison finally had a chance to write Monroe. With “great mortification in the disappointment it obliges me to throw on the curiosity of my friends,” Madison told Monroe of the gag rule the delegates had agreed to, preventing him from revealing anything of the proceedings. Madison thought the rule, which would allow for open and free debate, a wise one. Eleven states were present, and Virginia’s delegates had perfect attendance records with the exception of George Wythe, whose wife was not well (she would die on August 18).

  Monroe was cheering the Philadelphia Convention on from afar. To Elbridge Gerry, a good friend in Congress whose best man he had been, Monroe wrote of his “great anxiety as to the success of the business in which you are engaged. To bind the states together by the strongest ties, and to commit their interests to the direction of one common head is the first of my wishes; and I hope will be the event of this meeting.”9

  By June 13, the Virginia Plan had been digested through the body of the Convention, emerging in essentially the same form as crafted by Madison. But meanwhile, the smaller states had been working on a competing proposal of their own. William Paterson of New Jersey took the floor to ask for a recess until the next day, when the opposition plan would be presented. The New Jersey Plan agreed with Madison’s Virginia Plan in granting the new Congress powers to tax and regulate trade. But otherwise, the two plans had very little in common. Aside from those two new powers, the New Jersey plan closely followed the Articles of Confederation.

  But when Madison was finished deconstructing Paterson’s proposal in Convention, delegates chose to stick with the Virginia Plan. Virginia, North Carolina, South Carolina, Pennsylvania, Massachusetts, and Georgia voted for the Virginia Plan, while New York, New Jersey, and Delaware voted against it. The delegation from Maryland, the quintessential border state, was divided.

  It is noteworthy that the Southern states were such strong defenders of national power at the Constitutional Convention. Having recently been conquered by the British, living in constant tension with various Indian tribes, and sharing a substantial border with hostile European powers, the South chose the plan that would best serve its interests. Only a strong, well-financed government could deter and repel hostile enemies.

  But how could the smaller states be persuaded to agree to the Virginia plan?

  To illustrate the issues at stake, it is helpful to look at the population differentials from the census of 1790.10 (The populations of the new states formed between 1787 and 1790 are included in population figures for the states from whose territory they were primarily formed.)

  State: Total population: Slave population:

  Virginia (includes Kentucky) 821,287 305,057

  Massachusetts (includes Maine) 475,327 None

  Pennsylvania 434,373 3,737

  New York (includes Vermont) 425,659 21,324

  North Carolina 393,751 100,572

  Maryland 319,728 103,036

  South Carolina 249,073 107,094

  Connecticut 237,946 2,764

  New Jersey 184,139 11,423

  New Hampshire 141,885 158

  Georgia 82,548 29,264

  Rhode Island 68,825 948

  Delaware 59,094 8,887

  Virginia had almost fourteen times the population of Delaware, and yet both states had the same power in the Confederation Congress.e Madison fought hard for representation based on population in the Senate as well as the House. He could never be convinced, he said, that the present equality among the states in Congress was just, “nor necessary for the safety of the small states against the large states.” He pointed to concessions by Paterson himself and another member of the New Jersey delegation on this very issue.

  Madison did not believe the largest states would ever pose a threat to the smaller ones. There were significant economic, religious, and cultural differences among Virginia, Pennsylvania, and Massachusetts; and the history of the Confederation demonstrated that they were not typically prone to vote together. But Madison’s logic could not convince the small states to give up their disproportionate power. The problem seemed intractable.

  It was then that Franklin rose to speak, noting the “small progress we have made after four or five weeks,” the “dif
ferent sentiments on almost every question,” and the high number of dissenting states on recent votes. Franklin went on, “We have gone back to ancient history for models of government, examined the different forms of those republics which having been formed with the seeds of their own dissolution no longer exist. And we have viewed modern states all round Europe, but find none of their Constitutions suitable to our circumstances.”

  Considering the impasse the delegates had reached, Franklin wanted to know why they had not appealed to God. He asked why the delegates had not “once thought of humbly applying to the Father of lights to illuminate our understandings?” He continued,In the beginning of the contest with Great Britain, when we were sensible of danger we had daily prayer in this room for the divine protection. Our prayers, Sir, were heard, and they were graciously answered. All of us who were engaged in the struggle must have observed frequent instances of a superintending providence in our favor. To that kind providence we owe this happy opportunity of consulting in peace on the means of establishing our future national felicity. And have we now forgotten that powerful friend? Or do we imagine that we no longer need his assistance?

  I have lived, Sir, a long time, and the longer I live, the more convincing proofs I see of this truth—that God governs in the affairs of men. And if a sparrow cannot fall to the ground without his notice, is it probable that an empire can rise without his aid?

  Franklin believed that the delegates risked becoming builders of a modern-day Tower of Babel, an ugly byword for human failure in future generations. He wanted God’s aid in this great project, and to that end he proposed a chaplain be appointed to conduct daily prayer at the start of each session of the Convention.

  Alexander Hamilton agreed with Franklin, but wondered about the effect on public perception should the delegates send for a pastor. The discussion continued, and Franklin’s proposal was not given a vote before adjournment. But this sincere appeal from their senior member could not pass without having a profound effect on the delegates.

  The delegates began working toward compromise. “When a broad table is to be made,” Franklin said, “and the edges of planks do not fit, the artist takes a little from both, and makes a good joint... both sides must part with some of their demands.” He proposed that each state elect an equal number of senators, who would have equal suffrage on issues of state sovereignty. But on issues of taxing and spending Franklin suggested the states should vote in proportion to their contribution to the national treasury.

  James Wilson of Pennsylvania suggested that every state have at least one senator and that when the smallest state had at least one hundred thousand residents, the other states would be awarded an additional senator for every additional hundred thousand residents. Madison was willing to accept this proposal, but it went nowhere.

  Gunning Bedford of Delaware suggested that if the large states went their own way, the small would “find some foreign ally of more honor and good faith, who will take them by the hand and do them justice.” He did not offer this prediction as a threat, he said, but he felt that it would be the natural result if the large states ignored the rights of the small states.

  Slavery would also plague the Constitutional Convention, as it did the Congress and country for most of the early history of the republic. In the debate over representation, there was argument over what population would be counted for purposes of awarding House members to the states. Southern delegates insisted on counting slaves as full persons for representation, in sharp contradiction to the legal and moral arguments they used to defend slavery. This argument was made for the benefit of the master, not the slave. Northern delegates resisted; slaves could not be counted as property for one purpose and persons for another, whichever suited the whims of the slaveholder at the moment. Debate over popular representation had strained the Convention to its breaking point; this fight over slavery threatened to push beyond it.

  Ultimately, it was settled that “other persons” would be counted as three-fifths of a person.

  And the Convention reached a compromise in the conflict between small and large states as well. At the end of the debate, the proponents of equal representation of the states in the Senate prevailed by a single vote.

  But this compromise, though settled upon in Convention, would still need to be approved by the public. And the chance of public ratification was small considering only half the delegates plus one supported the compromise. Randolph warned, “It will probably be in vain to come to any final decision with a bare majority on either side.” He suggested an adjournment for further consideration and conciliation. But Paterson argued that the small states could in no way cede further ground to the larger states, and that if Randolph wanted to adjourn the session permanently, he ought to move to do so, and he, Paterson, would second the motion “with all his heart.” Randolph declined.

  When the delegates reconvened, they turned their attention to other issues. As they continued to hammer out the finer points of what the government should be, the members of the Philadelphia Convention knew that the final product would have to be presented to the general public in coherent form. A Committee of Detail was appointed to draft a document setting forth all points that had been settled so far. The Convention adjourned from July 26 through August 6 for the committee to prepare its report.

  Meanwhile back in Virginia, James Monroe was active in the private practice of law. Elizabeth had given birth to a daughter, a new member of the family “who though noisy, contributes greatly to its amusement,” he wrote to Jefferson. Monroe was increasingly confident in his abilities as a lawyer, but also frustrated with his sabbatical from public life. Monroe continued his letter to Jefferson, “I consider my residence here as temporary, merely to serve the purpose of the time.” He was still hoping to move closer to Monticello. As always, Monroe became wistful when he was removed from the theatre of action. “With the political world I have had little to do since I left Congress. My anxiety however for the general welfare hath not been diminished.”11

  In this letter to Jefferson, Monroe—frustrated at being left out of the deliberations in Philadelphia—made an extraordinary claim. His exclusion from the Constitutional Convention, he said, was intentional. Monroe claimed that he had been relegated to private life as part of a conspiracy involving one of his closest friends. Monroe wrote, “The Governor [Edmund Randolph] I have reason to believe is unfriendly to me and hath shown (if I am well informed) a disposition to thwart me; and Madison, upon whose friendship I have calculated, whose views I have favored, and with whom I have held the most confidential correspondence since you left the continent, is in strict league with him and hath I have reason to believe concurred in arrangements unfavorable to me; a suspicion supported by some strong circumstances, that this is the case, hath given me much uneasiness.”12

  Jefferson never responded to Monroe’s accusation, and we have no evidence that Monroe aired his complaint to anyone else.

  Monroe was quick to perceive slights where none were intended. He tended to take things personally, regardless of whether they were meant that way. There is no doubt that Monroe would have been an exceptionally well-qualified delegate to Philadelphia. But an examination of the qualifications of those selected in his stead makes Monroe’s claims that he was unfairly excluded implausible.

  Representing Virginia at Philadelphia were George Washington, James Madison, Edmund Randolph, George Mason, George Wythe, John Blair, and James McClurg. The reasons for Washington’s inclusion are so patently obvious they need not be explored. Madison’s long and distinguished tenure at the state and national level and his work in calling the Convention made his presence there inevitable. Randolph was the governor as well as a former member of Congress. Mason’s career in Virginia stretched back to the House of Burgesses and included authorship of Virginia’s Constitution and the Declaration of Rights. George Wythe, the nation’s preeminent legal scholar, had been a signer of the Declaration of Independence, a member of the Continen
tal Congress, Speaker of the Virginia House of Delegates, and a member of the Court of Appeals. John Blair was one of the most senior Virginia judges, a former Burgess and member of the Council of State, and a drafter of Virginia’s Constitution and Declaration of Rights.

  It is unlikely that Monroe could have considered himself more entitled to a place in the delegation than any of these men. The only delegate he could reasonably have considered himself more qualified than was Dr. James McClurg. McClurg was selected by Governor Randolph to fill the vacancy created when Patrick Henry, and then Richard Henry Lee, declined to attend. Henry was a former Burgess, two-time governor, and consistently the most powerful member of the House of Delegates. And Lee was a former Burgess, an influential member of the House of Delegates, and a long-standing member of Congress who had introduced the motion in favor of American independence. Monroe could not have entertained the presumption that he should have been chosen in the stead of any of these men.

  McClurg’s must have been the place Monroe thought should have been his. Monroe, though eleven years McClurg’s junior, easily outdistanced him in political experience—which is not to say that McClurg had none. A college classmate of Jefferson, McClurg was the foremost physician in Virginia and one of its wealthiest residents. He was serving on the governor’s Council of State when Randolph chose him for Philadelphia. After Henry and Lee passed, Randolph chose a colleague he knew well and respected. Monroe, unlike McClurg, did not have a friendship or working relationship with Governor Randolph. Monroe had been away from Virginia in Congress for three years and was nowhere near Richmond when the appointment was made.